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2021 Supreme(All) 754
IN THE HIGH COURT OF ALLAHABAD
MANOJ MISRA, DINESH PATHAK, JJ.
The State of U.P. through Special Secretary (Basic Education) and Others – Appellants
Versus
Committee of Management Sri Durga Ji Purva Madhyamik Balika Jamin – Respondent
Special Appeal No. 25 of 2021, Special Appeal Defective Nos. 225, 234, 238, 241, 255 of 2021
Decided On : 27-08-2021
Advocate Appeared:
For the Appellant : Rajiv Singh.
For the Respondent: Kunwar Bhaskar Parihar.
Point of Law: where an appointee does not possess the minimum qualifications prescribed by a statutory rule, the appointment would be void and can be questioned at any stage
Headnote:
Basic Education Act, 1972 - Section 19 - U.P. Recognized Basic Schools (Junior High Schools) (Recruitment and Conditions of Services of Teachers) Rules, 1978 - FIR - Quash - Appeals are that in district of appointments on post of Headmaster/Assistant Teacher in various Junior High Schools on grant-in-aid list of State were made and approved by Basic Questioning their appointment on various grounds complaints made to Commissioner of Division (for short Commissioner) were entertained and Commissioner set up a four-member Inquiry Committee that prepared a report –
Finding of the Court:
Commissioner though may not form basis for action as directed but it could very well be treated as an information justifying initiation of an enquiry and consequential action that is otherwise permissible statutory scheme petitions has not left it open for educational authorities empowered Act to examine validity of appointments provisions of Act and Rules framed there court are of view that judgment and order of Single Judge is liable to be modified to that extent enquiry report as well as order of State Government though would not be binding on educational authorities but may be taken as an information to initiate a fresh proceeding within framework and scheme - Similarly order will not be treated as a binding direction to lodge FIR but if educational authority by applying its own independent mind is of opinion that there is sufficient material reflecting commission of cognizable offence then it would be free to report such offence –
Result: Ordered accordingly
JUDGMENT :
MANOJ MISRA, J.
1. These six intra-court appeals arise from a common judgment and order dated 14.10.2020 of a learned Single Judge passed in six connected writ petitions, namely, Writ Appeal No. 5540 of 2020; Writ Appeal No. 5795 of 2020; Writ Appeal No. 5831 of 2020; Writ Appeal No. 5743 of 2020; Writ Appeal No. 5592 of 2020 and Writ Appeal No. 5582 of 2020.
2. As the aforementioned writ petitions were decided by a common order, with the consent of the learned counsel for the parties, these appeals were heard together and are being decided by a common judgment and order.
3. Briefly stated the facts giving rise to these intra-court appeals are that in the district of Azamgarh, appointments on the post of Headmaster/Assistant Teacher in various Junior High Schools on the grant-in-aid list of the State were made and approved by the Basic Shiksha Adhikari, Azamgarh (for short BSA). Questioning their appointment on various grounds, complaints made to the Commissioner of Azamgarh Division (for short the Commissioner) were entertained and the Commissioner set up a four-member Inquiry Committee that prepared a report on 28.1.2020 which was forwarded to the Commissioner by letter dated 29.01.2020 of the Additional Commissioner (Administration) i.e., the Chairman of the Inquiry Committee. The report was thereafter sent to the State Government. The Special Secretary of the State Government, vide letter/order dated 17.02.2020 addressed to the Assistant Director of Education (Basic), Azamgarh Division, Azamgarh, directed that a first information report be lodged against the officers, employees (teachers) and managers of the concerned institutions. Acting on the letter/order dated 17.02.2020, the BSA separately issued show cause notices to the management of the institutions calling upon them to submit a reply as to why the selection/approval with regard to the appointments be not cancelled. In addition to above, on 27.06.2020 letters were issued by the BSA to the Finance and Accounts Officers (for short the Accounts Officer) attached to its office to stop payment of salary to all those appointees whose appointment procedure was found faulty in the report dated 28.01.2020.
4. Writ Appeal Nos. 5540 of 2020; 5743 of 2020; 5795 of 2020 and 5831 of 2020 giving rise to Special Appeal Nos. 25 of 2021; Special Appeal (Defective) No. 238 of 2021; Special Appeal (Defective) No. 255 of 2021 and Special Appeal (Defective) No. 241 of 2021, respectively, were filed by the management of those Junior High Schools who were aggrieved with the Enquiry Report dated 28.01.2020 (forwarded on 29.1.2020), the order dated 17.02.2020 and the show cause notice. Whereas, Writ Appeal Nos. 5582 of 2020 and 5592 of 2020 giving rise to Special Appeal (Defective) No. 225 of 2021 and Special Appeal (Defective) No. 234 of 2021, respectively, were filed by those teachers who were aggrieved with the direction seeking stoppage of their salary.
5. The common ground taken in all the six writ petitions before the learned Single Judge was that basic education including recruitment and payment of salary of teachers related thereto, particularly, those working in institutions on grant in aid list of the State, is governed by statutes and the rules framed thereunder. It was urged that appointment of teachers in a recognized junior high school, receiving grant-in-aid from the State, is to be made in accordance with the provisions of U.P. Recognized Basic Schools (Junior High Schools) (Recruitment and Conditions of Services of Teachers) Rules, 1978 (for short 1978 Rules) which are framed and notified by the State Government in exercise of its power under Section 19 of the Basic Education Act, 1972 (for short 1972 Act) and the salary of such teachers is paid under the provisions of U.P. Junior High Schools (Payment of Salaries of Teachers and other Employees) Act, 1978 (for short 1978 Act). Neither in the 1978 Rules nor under the 1972 Act or 1978 Act, the Commissioner has a role to
